Restrictions in MusicPublishing Contracts

by Jeffrey and Todd Brabec

Certain Areas
In any negotiation with a songwriter, the music publisher will try to secure as many rights as possible without any restrictions so that it will be able to channel its promotion efforts in a wide range of income-producing areas.
For example, it may promote songs not only to recording artists and record producers but also to film and television companies, advertising agencies, ringtone companies, home video producers, karaoke firms, merchandise companies, music box manufacturers, video jukebox distributors, print dealers, Internet sites, and so on.
Songwriters, however, may have concerns, either creative or political, as to how their songs are used, and many times will try to restrict the publisher's promotion efforts and ability to grant licenses for certain types of uses.
These publishing contract negotiations usually revolve around the use of songs in commercials, political (or "special interest") radio and television campaigns, and NC-17-rated motion pictures, but can also extend to any use in a motion picture, television series, or other audiovisual project that may be seen or heard by the public.
Because many writers value the integrity of their songs and have concerns about how and in what context they might be used, the negotiations on these issues can become quite heated and, in some cases, can make or break a deal regardless of the trust that they may have in their music publisher making the right decision as to how their songs are used.
Recognizing that the area of advertising commercials can have the potential of denigrating a song by identifying it with a consumer product, especially when the lyrics are changed, many publishers will give approval rights, or at least consultation rights, to the songwriter, who thus can express his or her objections.
Others will ask the writer to list the types of product of concern (alcohol, tobacco, hygiene, bathroom, etc.) and agree that songs will not be licensed for use with such identified "objectionable products" without the writer's consent. Other publishers will demand that such decisions are within their exclusive province and provide for no restrictions on licensing.
In film and television, the issues are more difficult because restrictions in promotion and licensing in those media are the lifeblood of many publishers' activities. Because uses in movies and TV rarely hurt songs and have the potential of generating enormous amounts of income, to say nothing of the large media exposure they generate, music publishers try to limit any writer approvals in this area.
As for use in NC-17 films, however, writer approval rights are manytimes accepted by the publisher or there are approval rights granted for certain type of objectionable scenes (for example, sexually explicit scenes, scenes with extreme violence, etc).
If approvals are given to the writer, the time fuse for the writer to say either yes or no is usually a short one, such as 2 to 5 days but many times longer time periods are agreed to.
Quick answers to producers, especially in the making of television series, where scripts are being rewritten and scenes shot on a daily basis, are essential for getting songs into such projects since television production companies many times need immediate answers. If they can't get an answer, they'll go on to another song...thus the reason for a short response period.
Songwriter approval clauses usually provide that if a writer does not respond within the negotiated time frame ("____number of days after the request is made"), the use is deemed approved and the publisher may negotiate the license the song. On occasion, the use is deemed rejected if the songwriter does not respond but this type of provision is the exception rather than the rule.